Challenge to Environmental Impact Assessment Direction Faced High Bar

Article 2.1 of Directive 85/337 on Environmental Impact Assessment, as altered and consolidated by Directive 2011/92/EC says:

“Member States shall adopt all measures necessary to ensure that, before [development] consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects.”

At the outset, Annex 3 of the 2011 Directive set the criteria for making an initial assessment as whether a project is likely to have significant environmental effects including “cumulation with other projects.”

That provision was amended by Directive 2014/52/EU which added words to change the criteria to include “cumulation with other existing or approved projects.”

Document EC DG XI entitled “Guidelines for the Assessment of Indirect and Cumulative Impacts as well as Impact Interactions” (May 1999) describes cumulative impacts as “impacts that result from incremental changes caused by other past, present or reasonably foreseeable actions together with the project.”

Under domestic law the requirements of the Directive are incorporated in domestic law by the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 [“the EIA Regulations”].

Planning authorities have to decide whether the development proposed is “EIA Development” within the meaning of the EIA Regulations.

A development will be an “EIA development” if it is a development for the purposes of Schedule 2 which is “likely to have significant effects on the environment by reason of factors such as its nature, size or location”: Regulation 2(1). A screening direction is defined in Regulation 2(1) as “a direction made by the Secretary of State as to whether development is EIA development”.

In Commercial Estates Group Ltd v Secretary of State for Communities And Local Government & Ors [2014] the Claimant (“CEG”) sought permission to get Judicial Review of a screening direction of the Secretary of State. The direction was that a residential development was not “EIA Development”.

CEG was planning its own larger development.

CEG accepted that taken singly the proposal would not be likely to have significant effects on the environment.

Instead, it challenged the Secretary of State’s “irrational” failure to take into account a material consideration being a large housing allocation (“the SUE proposal”) contemplated by the Council’s draft Core Strategy which was in limbo following adverse comments by the examining planning inspector.

CEG said that development in accordance with the SUE proposal was a “reasonably foreseeable action” for the purposes of the above European Guidance, so that the decision to leave it out of account made the Secretary of State’s decision unlawful.

The High Court said public law was concerned to avoid conjecture and speculation and private law was concerned with the assessment of risk. It thought the test would be whether it would be reasonable to foresee that another development would occur.

However, for present purposes it was neither necessary nor desirable to draw a clear line because all the above European and domestic guidance was expressed in flexible language and gave a significant degree of freedom to the decision maker.

The assessment of the likelihood of the SUE proposals coming to fruition was a planning judgment for the Secretary of State to take and one with which the Court can only interfere if it was shown to be “Wednesbury unreasonable” in the sense that no sensible planning decision maker properly advised could reach it.

The fact that the Development Plan was not approved inevitably affected the likelihood of CEG’s application (or any similar proposal) coming to fruition and the Secretary of State had expressly considered this. He considered the status of that plan which would be subject to further work (to try and make it sound), withdrawal or a further finding that the amended plan was unsound. This had afforded him sufficient reason to conclude that the implementation of the CEG development in accordance with it was not reasonably foreseeable.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.